Professional Documents
Culture Documents
Role of Advocates in Judiciary
Role of Advocates in Judiciary
Role of Advocates in Judiciary
S.S. Upadhyay
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Former Legal Advisor to Governor
Raj Bhawan, Uttar Pradesh, Lucknow
Mobile : 9453048988
E-mail : ssupadhyay28@gmail.com
Website: lawhelpline.in
(11) Filing a fresh vakalatnama with the memorandum of appeal etc. will
always be convenient to facilitate the processing of the appeal by the
office. See :
(i) Uday Shankar Triyar vs. Ram Kalewar Prasad Singh, 2006(1) ARC 1
(SC) (Three--Judge Bench)
(ii) Ram Kishan vs. State of U.P., 2008 (61) ACC 838 (All)
5.01. Advocate bound to return papers to his client even in the event of
non-payment of fee : At any rate if the litigation is pending the party
has the right to get the papers from his advocate whom he has changed
so that the new counsel can be briefed by him effectively. In either case
it is impermissible for the former counsel to retain the case bundle on
the premise that fees is yet to be paid. This right of the litigant is to be
read as the corresponding counterpart of the professional duty of the
advocate. Therefore the refusal to return the file to the client when he
demands the same amounts to misconduct of the advocate u/s. 35 of the
Advocates Act, 1961. Even if the advocate feels that he has any genuine
claim or grievance against his client, the appropriate course is to return
the brief with endorsement of no objection and agitate such right in an
appropriate forum in accordance with law and not indulge in arm
twisting methods by holding on to the brief. See :
(i) R.D. Saxena vs. Balram Prasad Sharma, AIR 2000 SC 2912
(ii) New India Assurance Co. Ltd. vs. A.K. Saxena, AIR 2004 SC 311
5.02. Change of counsel and payment of fees to former counsel : After
change of counsel by the party, previous counsel cannot insist upon fees
till conclusion of proceedings. But where the former counsel had
worked till the stage of settlement of issues and leading evidence on
behalf of the party partly, the trial of suit had thus partly concluded and
therefore one fourth of the scheduled fee was directed by the court to be
paid to the counsel by the party and the counsel was directed to give
unconditional consent to engage another advocate. See : C.S. Venkatasu-
bramanian vs. State Bank of India, AIR 1997 SC 2329.
5.03. Writ Petition by the counsel maintainable under Article 226 of the
Constitution to recover the remaining fees : A writ petition by the
counsel seeking a claim of his fees may be entertained and considered
by the High Court and the request by counsel for directions in the matter
relating to counsel fees ought to be examined by the High Court.
Upholding counsel's claim of fees, the Supreme Court also gave
directions that the fees due would be paid to counsel with interest at the
rate of 12 %. See :
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In view of Sec. 30 of the Advocates Act, 1961, an advocate cannot file a writ
petition in his own name to pursue the cause of his clients. See : Vinoy Kumar
vs. State of U.P., (2001) 4 SCC 734
10. Party not to suffer for a bonafide mistake or negligence of his counsel : If
there is a bonafide mistake or negligence on the part of the lawyer, the party
should not be made to suffer. But it is equally true that for the negligence of
the counsel of one party, the other party should not suffer. See : Smt. Leela
Bhanott vs. Petrolube India, (2006) 64 ALR 403 (All—D.B.)
11. Notice to counsel means notice to party himself (Order 3, rule 5 CPC) :
According to Order 3, rule 5 CPC, notice given to counsel is for all purposes a
notice given to the concerned party whom he represents. Mere fact that the
counsel on being served, desires the court to send notice to the party
concerned, does not change the position. A notice served on counsel is as
good service as upon the party himself. See :
1. Brijlal vs. VIIth ADJ, Allahabad, 1995 (13) LCD 62 (All)
2. Sheo Ramdas Chela vs. Subhash Chandra, 1999 (36) ALR 324 (All)
12.01. “No Instruction” endorsement by counsel & its effect : Mere fact that the
counsel engaged by the party made an endorsement on the notice sent to him
that he had no instructions from his client does not terminate his authority and
he continues to be a counsel for the party unless he formally withdraws from
the case under leave from court u/o. 3, rule 4(2) CPC. See :
1. Jyoti Prasad vs. Punjab National Bank, AIR 1963 All 374
2. Narendra Kumar vs. ADJ, 2007 (67) ALR 530 (All)
3. Ashok Kumar Dhiman vs. Smt. Chandrawati Mehta, 1996 (27) ALR 6 (All)
4. Bijli Cotton Mills Pvt. Ltd. vs. M/s. Chagan Mal Basti Mal, AIR 1982 All 183 (D.B.)
12.03. “No contact with client” endorsement by counsel & its effect : Where
despite repeated communications by counsel to the party, no further
instructions were received by the counsel from his client and the statement of
the counsel to the effect that the client had no contact for instructions with the
counsel engaged by him, was recorded by the court, it has been held that the
dismissal of the appeal for want of prosecution on the part of the
party/appellant/client was proper. See : Subedar vs. Ram Swaroop, 2006
(65) ALR 582 (All)
12.04. Non-appearance by counsel in court on the ground of “no contact
by client” amounts to misconduct : Where the counsel had abstained
from appearing in the court for the party on the ground that his client
did not respond to several letters sent by the counsel to the client and the
counsel had not informed his client for his non-appearance in the court
and the case was dismissed in default, it has been held by the Allahabad
High Court that a counsel is bound to appear in the court for his client as
soon as he files his Vakalatnama in the court and such non-appearance
by the counsel amounts to grave misconduct towards the court. See :
Narendra Kumar vs. ADJ, 2007 (67) ALR 530 (All)
13.01. Advocate has no right to remain absent from court : An advocate has no
right to remain absent from court when the case of his client comes up for
hearing. He is duty bound to attend the case in court or to make an alternative
arrangement. Non-appearance in court without “sufficient cause” cannot be
excused. Such absence is not only unfair to the client of the Advocate but also
unfair and dis-courteous to the court and can never be countenanced. When a
party engages an advocate who is expected to appear at the time of hearing but
fails to so appear, normally, a party should not suffer on account of default or
non-appearance of the Advocate. In terms of the explanation to Order 41, Rule
17 CPC, an appeal can be dismissed in default and not on merits. In the event
of default by the appellant or his counsel, the appeal can only be dismissed in
default. See :
1. Secretary, Department of Horticulture, Chandigarh vs. Raghu Raj, (2008) 13 SCC 395
2. Rafiq vs. Munshilal, (1981) 2 SCC 788
3. Lachi Tewari vs. Director of Land Records, 1984 Supp SCC 431
4. Mangilal vs. State of M.P., (1994) 4 SCC 564
5. Tahil Ram Issardas Sadarangani vs. Ramchand Issardas Sadarangani, 1993
Supp (3) SCC 256
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High Court should not have decided the appeal on its merits without the
presence of the counsel does not deserve acceptance. That apart, it is
noticeable that after the judgment was dictated in open court, the counsel
appeared and he was allowed to put forth his submissions and the same have
been dealt with.” See : K.S. Panduranga Vs. State of Karnataka, AIR 2013 SC
2164 (para 36).
Note : In view of the larger Bench (Three-Judge Bench) decision in Bani Singh & Others
Vs. State of UP, AIR 1996 SC 2439, the Division Bench decision of the Hon'ble
Supreme Court in K.S. Panduranga Vs. State of Karnataka, AIR 2013 SC 2164 (para
36) has to be followed and not the other contrary smaller Bench decisions.
14.02. Withdrawal from case by counsel without leave from court & its
effect : Where the counsel engaged by the party had recorded an
endorsement to the effect “I withdraw” it has been held that such
endorsement is to be treated as an action without any leave from the
court which cannot be taken as a good ground for setting aside the ex-
parte decree by way of an application under Order 9, rule 13 CPC. See :
Smt. Veena Agarwal vs. M/s. Unjha Ayurvedic Pharmacy, 2007 (67) ALR
282 (All)(DB)
15. Death of the party and the duty of counsel (Order 22, rule 10-A
CPC) : Whenever a pleader appearing for a party to the suit comes to
know of the death of that party, he shall inform the Court about it, and
the Court shall thereupon give notice of such death to the other party,
and, for this purpose, the contract between the pleader and the deceased
party shall be deemed to subsist.
16. Remedy of the client against frauds etc. of his counsel : Where the
suit was dismissed in default because of the default of the counsel
engaged by the party and the counsel had failed not only to inform his
client but deliberately misled him and practiced systematic fraud on his
client, it has been held by the Allahabad High Court that the client is
entitled to all assistance from the court for setting right the injustice
done to him. See : M/s. Narain Agricultural Corporation vs. Allahabad Bank,
Civil Lines, Azamgarh, 1995 (13) LCD 569 (All).
17. Verbal service of notice on pleader : There is no ground to construe
the expression “date of service of notice” to mean only a notice in
writing served in a formal manner. When the legislature used the word
“notice” it must be presumed to have borne in mind that it means not
only a formal intimation but also an informal one. Similarly, it must be
deemed to have in mind the fact that service of a notice would include
constructive or informal notice. See : Nilkantha Sidramappa Ningashetti
vs. Kashinath Somanna Ningashetti, AIR 1962 SC 666 (Four-Judge
Bench)
18. Supreme Court advocate entitled to appear and plead in all High
Courts : An advocate of the Supreme Court becomes entitled as of right
to appear and plead as well as to act in all the High Courts including the
High Court in which he was already enrolled, without any
differentiation being made for this purpose between the various
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in the scheme of the CrPC should not be tampered with and the prime role
accorded to the public prosecutor not diluted. Even if there is a situation
where the public prosecutor fails to highlight some issues of importance
despite the same having been suggested by the victim’s counsel, the victim’s
counsel may still not be given the unbridled mantle of making oral arguments
or examining witnesses. If the victim’s counsel finds that the Public
Prosecutor has not examined a witness properly and not incorporated his
suggestions either, he may bring these questions to the notice of the court. If
the Judge finds merit in them, he may take action accordingly by invoking his
powers u/ 311 CrPC or u/s 165 of the Evidence Act. See: Rekha Murarka
Vs. State of W.B., (2020) 2 SCC 474.
21.07. A private counsel engaged by complainant can act only under guidance of
the public prosecutor : A private counsel engaged by the complainant can
act only under the guidance and instructions of the public prosecutor who is
in-charge of the prosecution u/s 301, 302, 225 CrPC. See :
(1) Sidharth Vashisth alias Manu sharma Vs. State of NCT of Delhi, AIR 2010 SC 2352
(2) Shiv Kumar Vs. Hukum Chand, 1999 (39) ACC 715 (SC)
(3) Kartika Chandra Bhattacharya Vs. State of UP, 1993 (30) ACC 688 (All)
(4) Suresh Chandra Sharma Vs. State of UP, 1986 (23) ACC 234 (All)
(5) Iqbal Ahmed Vs. Ketki Devi, 1976 CrLJ 244 (All)
22. Debarring advocate from practice found having indulged in winning over
prosecution witness / role of electronic media / sting operation / power of
courts in such matters. See : R.K Anand Vs. Registrar Delhi High Court,
(2009) 8 SCC 106.
23. Refusal by Bar to defend certain accused unethical :Where the Coimbatore
Bar Association, Tamil Nadu had passed a resolution that no lawyer will
defend the accused policemen who had allegedly clashed with the lawyers, it
has been held by the Supreme Court that the resolution of the Bar Association
that they will not defend certain accused persons (policemen) is against
constitution, statute and the professional ethics. It is the duty of lawyers to
defend irrespective of consequences. See : A.S. Mohammed Rafi Vs. State of
TN, AIR 2011 SC 308.
24.01. Hearing of counsel must in criminal cases : Relying upon earlier
Supreme Court decisions rendered in the matters of (i) A.S Mohammed
Rafi vs. State of T.N, AIR 2011 SC 308 (ii) Man Singh vs. State of
M.P, (2008) 9 SCC 542 & (iii) Bapu Limbaji Kamble vs. State of
Maharashtra, (2005) 11 SCC 413, it has been held by the Supreme
Court in Md. Sukur Ali vs. State of Assam, 2011 CrLJ 1690 (SC), that
“criminal case, whether trial, appeal or revision should not be decided
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Their only qualification is that they are on the panel of the counsel to be
so appointed for handling the surplus work. The Supreme Court,
therefore, is at a loss to understand as to how any fault can be found
with the Government if the Government has not though it fit to abolish
the said system and to appoint each time special counsel for special
cases in their place. See : State of U.P. Vs. U.P. State Law Officers
Association, 1994 AIR SC 1654.
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